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In re Constitutionality of various acts of primary and secondary legislation related to archives and classification regime

last modified Aug 21, 2012 12:45 PM

Case number:
34/1994 (VI.24) AB
Country:
Hungary
Date of decision:
22 June 1994
Court / Arbiter:
Constitutional Court, unreviewable ( Constitutional )


Decision:

Freedom of scientific life, the right to protection of personal data and the right to freedom of information need to be balanced against one another. The state is obliged to guarantee access to documents of communist ruling parties for scientific research. Freedom of information and scientific life cannot be regulated by secondary legislation. Only people holding public power can classify information as a state or official secret.


Keywords:
Constitution
Freedom of expression (including RTI as element of or integral to)
Judicial review (including access to courts)
National security (including defense, intelligence, state security, state secrets, secrecy laws)
Policy formulation (including draft documents)
Political information (including candidates, elections, political parties)
Privacy (harm to private interests, including life, health, safety)

Case details:

Facts

An unnamed petitioner requested the abstract constitutional review of various laws and acts of secondary legislation that regulate archiving and access, for purposes of scientific research, of the internal documents of two Hungarian communist parties that were in power before the 1989 democratic change.

Decision

The Constitutional Court maintained that freedom of scientific life (which  includes the right to freedom of scientific research and the right to spread scientific truths) is related to freedom of expression. As a result, it enjoys the same constitutional protections as other rights that emanate from freedom of expression. Therefore, freedom of scientific life can be limited only on the same grounds as freedom of expression.

The Court asserted that the right to protection of personal data is a constitutionally protected fundamental right which does not only entail the obligation to protect personal data but also the right to informational autonomy. This right extends to legal persons including democratic political parties. The two communist parties, however, exercised direct public power and their documents include public information and comprise integral sources of present-day historic research. As a result, the right to the protection of personal data in their case needs to be balanced against the right to information.

The Court observed that right to information is a constitutional right that is essential for the transparency of public power and the operation of state organs. There is a coherent relationship between freedom of information and scientific freedom guaranteed respectively by Articles 61(1) and 70/G of the Constitution. The Court held that access to archival information is usually requested in the framework of scientific research, and the Constitution, by guaranteeing freedom of information, already provides indirect protection for freedom for scientific research.

While both access to information and freedom of scientific research may be constitutionally restricted, any limitation is constitutional only if it is necessary for the effective exercise of another fundamental right or meets the proportionality test prescribed by Article 10(2) of the ECHR.

The Court found that it is unconstitutional to regulate archival research, protected by Article 70/G of the Constitution, at the level of secondary legislation, since pursuant to Article 8(2) of the Constitution, rules regulating fundamental rights and duties have to be determined by law. It further held that access to archives may be restricted, as these materials contain personal data and secret information, which often cannot be anonymized for technical reasons. Moreover, archived materials also contain internal preparatory documents to which the right of access to information does not extend. Considering these circumstances, the Court found that the application of European practice on special restrictions, including 30-year-long time limitations on archival research, was constitutional.

The Court also ruled on several classification-related issues, finding that: (1) expanding the scope of people authorized to classify information to include people not exercising public power violates the rule of law,  and legal certainty; (2), discretionary power over classification is unconstitutional, as it limits access to information without constitutional guarantees; and (3) the concept of “official secrets” is unclear and the possibility that such secrets could be classified indefinitely  is unconstitutional as it limits the essence of a fundamental right.

Resources:

Judgment of the Court.